SC criticism of Jayalalithaa encouraging, but free speech is no licence to defame

The Supreme Court's criticism of Tamil Nadu chief minister J Jayalalithaa on Thursday for filing numerous defamation cases against her critics has raised considerable expectations given the increasing threat to free speech in the country.

Although it’s not a final order, the observations of the court that no other state has filed so many criminal defamation cases using the state machinery, and that a public figure has to face criticism rather than choking it, make the appeal filed by DMDK leader Vijayakanth against a criminal defamation case on him by the Tamil Nadu government, extremely interesting.

What makes them particularly pertinent is that they come barely three months after another apex court verdict that had upheld the criminal liability of defamation.

File image of Tamil Nadu Chief Minister J Jayalalithaa. AFP

“Reputation of one cannot be allowed to be crucified at the altar of the other’s right of free speech,” a two-member bench of the Supreme Court had said in May 2006 in its ruling on a petition filed by BJP leader Subramanian Swamy against criminalising defamation. The court didn’t rule in his favour when it said, “notwithstanding the expansive and sweeping ambit of freedom of speech, as all rights, right to freedom of speech and expression is not absolute. It is subject to imposition of reasonable restrictions.”

The observations of the court on Thursday, however, seems to have communicated an opposite and encouraging point-of-view when it reportedly said that “if somebody criticises the policy of the government, if the person criticised is a public figure, he has to face it instead of using the state machinery to choke criticism.” It further said: “This is not the way… this is not the sign of a healthy democracy.”

In the last five years, the Tamil Nadu government has filed 213 defamation cases — a majority of them against the DMK and the DMDK, and 55 against the media.

The May order, that refused to strike down the provisions of criminal defamation, disappointed free speech advocates and legal experts, while the BJP and the Congress thought it was balanced, possibly because it suited them politically. However, the observation by veteran journalist N Ram that “we were expecting the Indian jurisprudence to move in line with international practices where many countries, including Sri Lanka and the United States, have done away with these practices” summarised the overall mood of disenchantment that the order evoked. Therefore, the court’s observations on Thursday raise hopes once again.

The proceedings in the case, that will come up again for hearing after five weeks, bring back to national attention the misuse of defamation by people with power and influence, particularly criminal defamation, against anti-corruption campaigners, free-speech activists and even political adversaries. In the case of Tamil Nadu, a majority of cases have been filed against politicians, that too for criticising government policies. Public speeches criticising Jayalalithaa or any criticism of the government’s performance, let alone allegations of corruption, had become a potential source of defamation cases, that take up a lot of time and energy. With the threat of defamation looming over one’s head, it’s practically impossible to practise politics or free speech as guaranteed by the Indian Constitution.

Silencing political opposition that is indispensable to foster transparency and accountability, jeopardises the basic idea of democracy itself. Although some of the media reports have been potentially defamatory, particularly those based on hearsay on Jayalalithaa’s health, conflating personal, political and official spaces to silence dissent has been indeed bad for fearless public life. The perceptible threat that any unpalatable criticism, or even observation, can land one in court cases was direct intimidation. Even prominent media houses, not only in TN, but also outside the state, have faced defamation cases.

The points noted by a two-member bench of the Madras High Court in April 2006 on the 'R Rajagopal (Nakkeeran Gopal) Versus Jayalalithaa' case are illuminating in this context. The bench comprising Justice AP Shah and Justice Prabha Sridevan had delineated the law on defamation with a lot of clarity, particularly on the question of defamation of a person holding public office.

“In a democratic set up a close and microscopic examination of private lives of public men is the natural consequence of holding of public offices. What is good for a private citizen who does not come within the public gaze may not be true of a person holding public office. What a person holding public office does within the four walls of his house does not totally remain a private matter,” they said. The bench also noted that “the freedom of press, as noted by Venkataramaiah, J, is one of the items around which the greatest and bitterest constitutional struggles have been waged in all countries where liberal constitutions prevail.”

Although an encouraging final order on the Vijayakanth case can empower political parties and others to freely indulge in free speech and take part in democratic processes, the media should certainly observe caution in exercising its rights under Article 19(1)(a) of the Constitution. Some of the media stories about Jayalalithaa’s health appeared to have been based on rumours and unsubstantiated information and hence cannot justified. Protection against defamation is also a legitimate right, although silencing any form of criticism is not the way to go about it. In fact, raising the bar of tolerance will in turn reduce the acceptability of wilful libel because free speech always improves transparency, accountability and democratic governance.

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